Page images
PDF
EPUB

AGGREGATION. (See also the title PATENT LAW.)—An aggregation is thus distinguished from a patentable combination: "A combination of wellknown separate elements, each of which, when combined, operates separately and in its old way, and in which no new result is produced which cannot be assigned to the independent action of one or the other of the separate elements, is an aggregation of parts merely, and is not patentable; but if to adapt the several elements to each other, in order to effect their coöperation in one organization, demands the use of means without the range of ordinary mechanical skill, then the invention of such means to effect the mutual arrangement of the parts would be patentable. The parts need not act simultaneously, if they act unitedly to produce a common result. It is sufficient if all the devices coöperate with respect to the work to be done and in furtherance thereof, although each device may perform its own particular function only." 1

AGGRIEVED.—As to person or party aggrieved, see 2 ENCYCLOPÆDIA OF PLEADING AND PRACTICE, p. 167; and see this work, PERSON AGGRIEVED.

be done "shall contain a specific appropria-
tion from the proper revenue or fund, based
upon an estimate of cost, to be indorsed by
the engineer on said ordinance, for the whole
of the cost of each street, part of street, or
other object, respectively; and every contract
shall contain a clause to the effect that it is
subject to the provisions of the charter that
the aggregate payments thereon shall be
limited by the amount of such work, specific
appropriation, etc." It was contended that ag-
gregate payments meant the amount to be paid
for the whole work, and not the amount paid
by the city alone. But it was held that the
aggregate payments applied only to payments
made by the city treasurer. Seibert v. Caven-
der, 3 Mo. App. 423. The court said: "What,
then, is meant by an appropriation for the
whole of the cost of the work? Clearly not
an appropriation to cover the macadamizing
and other items for which the city is not per-
mitted to pay. This would leave nothing to
be paid for by the property-owners, and would
be in direct violation of the charter.
therefore, compelled to interpret the expres-
sion 'whole cost' as meaning the whole cost
of what is to be paid for out of the city treas-
ury, and as not including anything more. The
words ‘aggregate payments,' in the next sen-
tence, have, manifestly, the same limit of ap-
plication. It might be argued that the aggre-
gate payments on the contract' would neces-
sarily include the sums paid to the contractor
by the property-owners. But these aggregate
payments, it is commanded, must not exceed
the amount of such specific appropriation.'
Hence it is impossible to suppose that the
words, although capable of a larger significa-
tion, are here used with reference to anything
more than the aggregate payments on con-
tract, to be made from the city treasury. We
thus perceive that in all these provisions the

[ocr errors]

We are,

2

The

mind of the law-maker was occupied with the
subjects of expenditures, appropriations, and
estimates, as they might affect the municipal
finances, and not in any other relation.
'specific appropriation for the whole of the
cost,' etc., thus understood, being based on
the engineer's estimate, the latter cannot be
even inferentially required to cover any
greater extent."

1. Standard Oil Co. v. Southern Pac. Co., 7 U. S. App. 649. See also Hailes v. Van Wormer, 20 Wall. (U. S.) 353; Reckendorfer v. Faber, 92 U. S. 357; Pickering v. McCullough, 104 U. S. 318.

In Hailes v. Van Wormer, 20 Wall. (U.S.) 368, Mr. Justice Strong said: "All the devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly, as an independent invention. It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and then allowing each to work out its own effect, without the production of something novel, is not invention."

In Reckendorfer v. Faber, 92 U. S. 357, Mr. Justice Hunt said: "The combination, to be patentable, must produce a different force or effect, or result in the combined forces or processes, from that given by their separate parts. There must be a new result produced by their union; if not so, it is only an aggregation of separate elements."

Volume IL

AGISTMENT.

BY JOSEPH R. LONG.

I. DEFINITION AND NATURE, 3.

II. DUTIES AND LIABILITIES OF AGISTOR, 4.

1. To Owner of Agisted Animals, 4.

a. Duty to Take Ordinary or Reasonable Care, 4.

b.

Liability for Loss or Injury of Stock, 5.

(1) In General, 5.

(2) Warranty of Pasture-Diseases Contracted, 6.
(3) Duty to Maintain Good Fences, 7.

(4) Injuries by Other Animals, 8.

(5) Negligence-Burden of Proof, 8.

2. To Third Persons for Damage Done by Animals, 9.

III. LIABILITY OF OWNER FOR DAMAGE DONE BY ANIMALS, IO.

1. To Agistor, 10.

2. To Third Persons, 10.

IV. RIGHTS OF AGISTOR, II.

1. Against Third Persons, II.

2. Against Owner-Right to Lien, 12.

a. At Common Law, 12.

(1) No Lien in General, 12.

(2) Reasons for Denying Lien, 12.
(3) Lien for Special Services, 13.
(4) Lien by Agreement, 13.

b. Liens by Statute, 13.

CROSS-REFERENCES.

For other matters of SUBSTANTIVE LAW and EVIDENCE related to this subject, see the titles: ANIMALS; BAILMENT; CRUELTY TO ANIMALS; FENCES; INJURIES TO ANIMALS; LIENS; LIVERY-STABLE KEEPERS,

I. DEFINITION AND NATURE-Definition.-Agistment is the taking of another person's cattle into one's own grounds to be fed, for a consideration to be paid by the owner. It follows that an agistor is one who thus takes in horses and other animals to pasture at certain rates.2

Nature. Agistment is a bailment for the mutual benefit of bailor and bailee, and is subject to the same general principles, as to rights and liabilities, as that class of bailments generally.3 The use of a horse for its keep has been held to be a sufficient consideration to support such a bailment.4

1. Definition.-Bouv. Law. Dict.; Williams v. Miller, 68 Cal, 290.

2. Bouv. Law Dict.; Schoul. on Bailm. & Car., 96; Auld v. Travis (Colo. 1895), 39 Pac. Rep. 357; Bass v. Pierce, 16 Barb. (N. Y.) 595; Atwater v. Lowe, 39 Hun (N. Y.) 150.

3. 2 Story on Contracts, § 898; Colton v. Wise, 7 Ill. App. 395; Swann v. Brown, 6 Jones (N. Car.) 150, 72 Am. Dec. 568; Phelps v. Paris, 39 Vt. 511; Sargent v. Slack, 47 Vt. 674, 19 Am. Rep. 136.

4. The Use of a Horse for Its Keep.-Where the owner of a horse, having no use for it, in

order to avoid the expense of keeping, requested the defendant to keep the horse through the winter and do his work with it in consideration for its keep, it was held that such a transaction was not a gratuitous loan requiring extraordinary care on the part of the defendant, but a contract for the mutual benefit of both parties and requiring only ordinary care. Chamberlain v. Cobb, 32 Iowa

161.

Where the owner placed a horse in possession of the defendant to be worked for its keep, and to do the plowing and milling for the owner and be subject to the latter's

II. DUTIES AND LIABILITIES OF AGISTOR-1. To Owner of Agisted Animalsa. DUTY TO TAKE ORDINARY OR REASONABLE CARE.-An agistor is not, like an innkeeper or carrier, an insurer of the safety of cattle intrusted to him, but he is bound to exercise ordinary and reasonable care, and if they are killed or injured through negligence on his part, he will be held responsible. He must exercise such care as a man of ordinary prudence would use under the same circumstances towards his own property.

Amount of Compensation Immaterial.-In the absence of any special contract, the price to be paid is immaterial in determining the degree of care to be used, but in all cases the bailee must exercise reasonable care; and if no price is fixed, the law will imply that he shall receive a reasonable compensation.3

use, it was held that this was a contract of bailment. Maxwell v. Houston, 67 N. Car. 305.

An Apparent Exception occurs in the case of Bennett v. O'Brien, 37 Ill. 250, where the contract was essentially a loan, and not a contract for pasturage. In this case the plaintiff

let the defendant have the use of his horse without compensation. After a drive of eighteen miles, the horse sickened and died. The defendant was held responsible as not having exercised the extraordinary care required of a gratuitous bailee. Lawrence, J., in delivering the opinion of the court, said: "In regard to the character of the bailment, it may be remarked that the fact of the plaintiff being saved the keeping of his horse by loaning him to the defendant, although to that extent the loan may be considered an advantage to him, does not take from it the character of a gratuitous bailment. Such incidental advantage is not the compensation necessary to make the bailment one of hire. The loan of the use of domestic animals necessarily involves their keeping. He who borrows the horse of another for a week's journey must not only incur the expense of feeding him, but he must take the responsibilities of a gratuitous bailee." See also Howard v. Babcock, 21 Ill. 265; Phillips v. Coudon, 14 Ill. 84.

Keeping a Cow for Her Milk.-Under the English Act (46 & 47 Vict., c. 61, § 45) restricting the right of the landlord to distrain cattle in possession of a tenant who is agisting them at a 66 'fair price" on the leased premises, it was held that an agreement by which a tenant was to keep a cow for her milk was an agistment within the meaning of this act. London, etc., Bank v. Belton, 15 Q. B. Div. 457.

Increase of Cattle.-Where a person delivers cattle to another to be returned within one year, with the natural increase, and compensation for such as were lost, this is a letting for a valuable consideration, the promise to deliver increase being a consideration for the use. Putnam v. Wyley, 8 Johns. (N. Y.) 432, 5 Am. Dec. 346.

An agistor who takes a mare to pasture in consideration of her services is not entitled to her increase. Allen v. Allen, 2 P. & W. (Pa.) 166.

1. Agistors must Exercise Ordinary and Reasonable Care-England.-Broadwater v. Blot, Holt 547; Smith v. Cook, 1 Q. B. Div. 79; Searle v. Laverick, L. R., 9 Q. B. 122.

Illinois.-Colton v. Wise, 7 Ill. App. 395; Race v. Hansen, 12 Ill. App. 605; Umlauf v. Bassett, 38 Ill. 96; Halty v. Markel, 44 Ill. 225; Mansfield v. Cole, 61 Ill. 191, 92 Am. Dec. 182; Union Stock Yard, etc., Co. v. Mallony (Ill. 1895), 41 N. E. Rep. 888.

Indiana.-Bunnell v. Davisson, 85 Ind. 557. Massachusetts. - Wood 2'. Remick, 143 Mass. 453.

Michigan.-Dennis v. Huyck, 48 Mich. 622, 42 Am. Rep. 479.

Missouri.-Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444; Winston v. Taylor, 28 Mo. 82, 75 Am. Dec. 112; McCarthy v. Wolfe, 40 Mo. 520; Cummings v. Mastin, 43 Mo. App. 558.

Nebraska.-Calland v. Nichols, 30 Neb. 532. New Hampshire.-Sinclair v. Pearson, 7 N. H. 219.

Texas.-Brush 7. Clarendon Land, etc., Co., 2 Tex. Civ. App. 188.

Vermont.-Eastman v. Patterson, 38 Vt. 146; Malaney v. Taft, 60 Vt. 571, 6 Am. St. Rep. 135. See also O'Keefe v. Talbot, 84 Iowa 233; Auld . Travis (Colo. 1895), 39 Pac. Rep. 357.

2. Must Exercise Same Care as towards His Own Property.-Cloyd v. Steiger, 38 Ill. App. 107, 139 Ill. 41; Maynard v. Buck, 100 Mass. 40; Rey v. Toney, 24 Mo. 600, 69 Am. Dec. 444; McCarthy 7. Wolfe, 40 Mo. 520; Swann 7. Brown, 6 Johns. (N. Car.) 150, 72 Am. Dec. 568; Morgan v. Crocker, 62 N. Y. 626; Gibbs 7. Coykendall, 39 Hun (N. Y.) 140; Murray v. Rhodes (Pa. C. Pl.), 3 Lack. Jur. 123; Phelps v. Paris, 39 Vt. 511; Sargent v. Slack, 47 Vt. 674, 19 Am. Rep. 136. See also Moore 7. Mobile, 1 Stew. (Ala.) 283; Francis v. Shrader, 67 Ill. 272; Wolscheid v. Thome, 76 Mich. 265.

Responsibility for Skill.-By the Roman and common law an agistor was responsible for reasonable skill as well as reasonable diligence, and ignorance in his business was construed as negligence. Story Bailm., § 443; Dig., lib. 19, tit. 2, 1, 9, § 5; Pothier Pand., lib. 19, tit. 2, note 29.

3. Amount of Compensation Immaterial in Determining Degree of Care.-Maynard v. Buck, 100 Mass. 40; Phelps v. Paris, 39 Vt. 511.

"Breachy" Horse.-Where the owner delivered a horse to an agistor to be pastured, and the horse broke out of the pasture and strayed away and was lost, the evidence showing that the horse was "breachy," and that this fact was known to the owner, it was held that, in the absence of any special agreement, the agistor was bound to use only ordinary care, and the

b. LIABILITY FOR LOSS OR INJURY OF STOCK—(1) In General—Agistor Liable Only when Negligent.-An agistor is liable for injuries that may occur to animals in his charge only when due to negligence on his part, and he is not answerable when the injuries result from the wantonness or mischief of others. For instance, he would be liable for turning a colt into a field to which a vicious bull has access, although he is unaware that the bull is of a vicious disposition;2 or where he imprudently allows strangers to enter his stable at night, so that the horses escape and are lost; or if he leaves his gates open or fences down, and in consequence of such neglect the cattle stray away and are lost or stolen.4

Negligence of Servants.-An agistor is bound to employ reliable servants, and will be held responsible for the results of their negligence and carelessness

owner, knowing the disposition of his horse, ought to have contracted for extraordinary care. Mansfield v. Cole, 61 Ill. 191.

Special Contract Construed as Requiring Only Ordinary Care.-A contract by the defendant to keep the plaintiff's stock "as well as he could, considering the hay and the chance," requires only ordinary care on the part of the defendant. Eastman v. Patterson, 38 Vt. 146, Where the defendant contracted to take "good care" of plaintiff's mare and colt intrusted to him, and return them in good condition, it was held that this was a contract for only ordinary care. Ransom v. Getty, 37 Kan. 75.

as

Agistor's Duty where the Particulars of Care are Defined by Contract. If it is explicitly agreed just what the agistor shall do in taking care of the cattle put in his charge, that he shall feed them on a particular kind of food, keep them in special shelter, etc., the agistor must follow the express stipulations in these respects; and if by reason of such adherence to contract the cattle are injured, the agistor will not be responsible for the consequences. Bunnell v. Davisson, 85 Ind, 557.

1. Agistor Liable Only when Negligent.-Story on Bailments, § 443; Hanover on Law of Horses, §§ 417-420; Broadwater v. Blot, Holt 547; Morgan v. Crocker, 62 N. Y. 626; Halty 2. Markel, 44 Ill. 225, 92 Am. Dec. 182; O'Keefe v. Talbot, 84 Iowa 233; Ransom v. Getty, 37 Kan. 75; Maynard v. Buck, 100 Mass. 40; Conrad v. Hildebrand, 69 Wis. 396. See also Phillips v. Coudon, 14 Ill. 84; Conwell . Smith, 8 Ind. 530; Mackenzie v. Cox, 9 C. & P. 632.

Agistor Liable for Damage Remotely Caused by Him. The agistor is liable, even though the injury be only remotely caused by his conduct, where this amounts to a breach of contract. Thus, where an agistor who undertakes to stable a horse turns him out of doors, he may be held liable for damages if the horse catches cold. McMahon v. Field, 7 Q. B. Div. 5)1.

Working Sick Horse.-The plaintiff hired the defendant to pasture his horse. The horse was in sound condition when received by the defendant, but became sick with distemper, and while in that condition was worked by the defendant, being much injured thereby. The defendant was held liable for the loss resulting from such misuse. Conrad v. Hildebrand, 69 Wis. 396.

Damage Caused by Stress of Weather.-An agistor is not liable for the loss occasioned by the death of cattle from stress of weather, when he has been guilty of no negligence, and has bestowed on them such care as a reasonable person would bestow on his own cattle under the same circumstances. Brush v. Clarendon Land, etc., Co., 2 Tex. Civ. App. 188; O'Keefe v. Talbot, 84 Iowa 233.

Where an Agisted Mare Escaped from the Pasture and was killed, no negligence being shown, it was held that the agistor was not responsible. Umlauf v. Bassett, 38 Ill. 96.

Conversion by Bailee.-A received a horse of B to board. Contrary to the instructions of the owner, A used the horse in his own business, and the horse was foundered. It was held that A was liable for conversion of the horse. Collins v. Bennett, 46 N. Y. 490.

Wrongful Sale by Bailee.-A delivered his cow to B to keep, under an agreement that the latter should pay himself for her keep by the milk, and if at any time within four months he should pay thirty-five dollars for the cow she was to belong to him; otherwise, she was to be returned to the owner in good condition. B sold the cow to C, who bought in good faith, supposing B to be the owner. It was held that A could recover in trover from C. Hart v. Carpenter, 24 Conn. 426.

Where the Owner has Parted with Title, the agistor is not liable to him for a subsequent wrongful disposal of the animals in his care. Union Stock Yards, etc., Co. v. Mallory, (Ill. 1895), 41 N. E. Rep. 888.

2. Smith v. Cook, 1 Q. B. Div. 79.

3. Swann v. Brown, 6 Jones (N. Car.) 150, 72 Am. Dec. 568. In this case the plaintiff delivered his horse to the defendant to be kept in his stable for the night. In the stable were some horses belonging to a certain stagecoach, which were in charge of the driver. During the night the driver removed the stage horses, and in the morning it was found that the horse of the plaintiff had broken out of his stall and escaped, in consequence of which he was killed on a railroad to which he had strayed. It was held that the defendant was guilty of negligence in not having a servant in the stable to see that the door was kept properly closed.

4. Leaving Gates Open.-Story on Bailm., § 443; Jones on Bailm., 92; 1 Bell Com., § 394 (4th ed.), p. 458, 5th ed.; Broadwater v. Blot, Holt 547; Bass v. Pierce, 16 Barb. (N. Y.) 595.

while in his service. His liability extends to all acts of his servants when done in the course of their employment, or in obedience to his instructions;1 and he will be liable for all their acts done within the scope of their employment, even though they be done without his knowledge and authority, and contrary to his direction.2

(2) Warranty of Pasture-Diseases Contracted-Agistor must Provide Suitable Pasture. It is implied in the contract for agistment that the cattle shall be kept in a pasture of such a character that they shall not be exposed to the danger of contracting disease, either from the insufficiency or unwholesomeness of the food supplied, or by infection from diseased cattle kept in the same inclosure. If the cattle delivered to an agistor to pasture, sicken or die from improper food, or exposure to disease, he will be responsible to the owner for the damages.3

1. Agistor Liable for Negligence of Servants. -Story on Bailm., §§ 400, 403; Schoul. on Bailm. & Car., §§ 108, 145, 147.

A agreed to pasture a number of colts for B, saying that he would build a fence around the pasture and would let B know when the fence was done. When the fence was partly done he told B that he might put the colts in the field, and that he would finish the fence that afternoon. B put the colts in the field, but the fence was not finished as promised. One of the colts was injured by jumping the fence, and subsequently died. It appeared that the colt had gotten out of the pasture, and that defendant's son and hired men were putting it back when the injury occurred. There was conflicting evidence as to whether A's son was dogging the colt at the time, thus causing the injury. The court decided that A was responsible, saying that while the master is not liable for wilful and malicious injuries done by his servants, he is bound to employ careful and trustworthy servants, and is responsible for their careless or negligent acts while in the course of their employment. Halty . Markel, 44 Ill. 225, 92 Am. Dec. 182.

In Sinclair v. Pearson, 7 N. H. 219, the plaintiff delivered his horse to the defendant to be safely kept and boarded. While in the custody of the defendant, the horse was carelessly ridden by defendant's servant so that it ran against a horse and chaise in the highway and was killed. It appeared that the servant was acting in the course of his master's business, and the death of the horse resulted from his carelessness and mismanagement while so engaged. The master was held responsible, although the servant was not acting in pursuance of any express directions from him.

2. Agistor Liable for All Acts of Servants within Scope of Their Employment.-Story on Agency, 66 452, 453 and notes; Story on Bailm., § 402, notes; Bileu v. Paisley, 18 Oregon 47. See also Bard v. Yohn, 26 Pa. St. 482; Philadelphia, etc., R. Co. v. Derby, 14 How. (U. S.) 468.

3. Agistor must Provide Suitable Pasture.I Bell Comm. 458; Gibbs v. Coykendall, 39 Hun (N. Y.) 140; Cloyd v. Steiger, 139 Ill. 41, 38 Ill. App. 107; McAuley v. Harris, 71 Tex. 631. See also O'Neal v. Knippa (Tex. 1892), 19 S. W. Rep. 1020.

Where, through the negligence of the agistor, sheep were permitted to escape into an

adjoining pasture, where they became diseased from contact with other sheep, it was held that the agistor was liable. Sargent v. Slack, 47 Vt. 674, 19 Am. Rep. 136.

Defendant agreed to agist plaintiff's cattle, feeding them in winter on hay, straw, and stalk-fields, and in summer on corn, so that they would increase in weight on an average of four hundred and fifty pounds each by a certain time. A large number of the cattle died during the winter, and it appeared that the cattle could not be wintered on the food contracted for. It was agreed that they should be fed on corn, and the defendant should be released from the contract to increase the weight as originally agreed. It was held that the giving of better food was a sufficient consideration to establish the new contract, relieving the defendant from the obligation to increase the weight of the cattle according to the original agreement. Teal v. Bilby, 123 U. S. 572.

The

Special Contract as to Number of Cattle and Time of Pasturage.-A contracted with B to pasture on B's land for a certain price per head, "at his own risk and cost for herding, etc., all the cattle it should be capable of grazing, *** and in no case less than three thousand head." B agreed to "agist and pasture" the cattle on these terms. About seven hundred cattle were pastured on the land, and paid for at the agreed rate. pasture became insufficient to provide food for any more, and A refused to put the other cattle on the land. B brought an action to recover the balance claimed for the remainder of the three thousand head, and insisted that the contract was not one of agistment, but in effect a lease of his land, the money to be paid being rent therefor; and that A could not relieve himself from paying the stipulated rent because he was unable to pasture as many cattle, or for so long a time, as he had supposed when the contract was made. The court decided otherwise, and held that the contract was one of agistment, and A was not liable for the balance. Williams v. Miller, 68 Cal. 290. Compare Howard v. Throckmorton, 59 Cal. 79.

C agreed to pasture about two thousand cattle for M at a certain rate per head, for a term not longer than eight months, and to give all possible protection for the safety and benefit of the cattle, and M reserved the right

« PreviousContinue »